Sugandha Devi vs Sri Munshi Saw
2021 Latest Caselaw 3648 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    M.A. No. 619 of 2018
             1. Sugandha Devi
             2. Munna
             3. Sainu
             4. Shanti Devi
             5. Hari Lal Sao                                        .... Appellant(s)
                                         Versus.
             1. Sri Munshi Saw
             2. Bajaj Allianz General Insurance Co. Ltd., Ranchi.
                                                                 .. ... Respondent(s).
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CORAM: HON'BLE MR. JUSTICE ANANDA SEN THROUGH: VIDEO CONFERENCING.

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For the appellant(s): Mr. Shahid Khan, Advocate.

For the respondent(s): Mr. Siddhartha Jyoti Roy, Advocate.

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07/28.09.2021: Heard the learned counsel for the parties.

2. This appeal has been filed by the claimants challenging the award dated 28.7.2018 passed in Claim Case No. 125 of 2010 by the District Judge, Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribag, whereby, the claim application, filed by the claimants on the ground of death of Tulsi Sao, was rejected.

3. The claim application, for grant of compensation was filed under the Motor Vehicle Act, 1988 by the claimants, who are the wife, children and parents of the deceased, stating therein that on 22.12.2009 at about 8 p.m., Tulsi Sao (deceased) was driving the vehicle- Mahindra Jeep bearing registration No. JH-13A- 4213, which was being used for the purpose of business and was loaded with consignment of liquor from Smirdhi Traders. He along with others was going to village Kanhachatti. At about 8:30 p.m to 8:45 p.m, when the vehicle reached near Pandey Mahua Ghati, Katkamsandi Road, he found that the road was blocked by stone barriers. The deceased stopped the vehicle when 10-12 miscreants (road robbers) armed with lethal weapon and fire arm, intercepted the vehicle. The deceased-driver tried to escape by reversing the vehicle, but one of the miscreants fired bullet from his fire arm, which hit the head of the deceased. The deceased sustained grievous injury. The robbers robbed all the valuables from the vehicle and detained the vehicle for 10 minutes. The companion of the deceased thereafter rushed the deceased to Sadar Hospital, but he succumbed to the injury.

4. As the deceased died arising out of the said incident, the claim application was filed by the claimants impleading the Insurance Company- M/s Bajaj Allianz General Insurance Co. Ltd., Ranchi as well as the owner of the vehicle. The claimants claimed that the deceased used to earn Rs.14,000/- per month as he was a professional driver and was about 28 years old. The claimants i.e. the wife, children of the deceased and the parents, claimed compensation.

5. It is the case of the claimants that one Katkamsandi P.S. Case No. 321 of 2009 dated 23.12.2009 under Section 396 of the Indian Penal Code was registered due to the said accident, where charge-sheet was filed under Sections 396 and 412 I.P.C. It is further case of the claimants that they were wholly depend upon the deceased and they are entitled for compensation.

6. After notice, before the Tribunal, the owner of the vehicle appeared and admitted that the he is the owner of the said vehicle bearing registration number JH 13A-4213 and the deceased was his employee being professional driver, who used to regularly drive the aforesaid vehicle. It is also stated that at the time of accident, the vehicle was duly insured by M/s Bajaj Allianz General Insurance Company Limited. He further admits that since the vehicle was duly insured, it is the insurer who has to pay amount of compensation.

7. The Insurance Company also appeared and filed their written statement separately. It is admitted in their written statement that Jeep bearing registration No. JH 13A-4213 was insured at the material point of time when the incident took place, being the Insurance Policy No. OG-10-2446-1812-00000047, which was valid from 9.5.2009 to 8.5.2010. The Insurance Company took a ground that the incident is of murder were the deceased was shot by some unknown miscreants and as no road traffic accident had taken place, the claimants are not entitled to receive any amount of compensation under the Motor Vehicles Act.

8. On the basis of the pleadings of the parties, five issues were framed by the Tribunal, which is reproduced herein-below:-

(i) Whether this claim case is maintainable under the law?

(ii) Whether the claimants have valid cause of action for this case?

(iii) Whether on 22.12.2009 at 9:00 pm while Tusi Sao driven the Savari Jeep No. JH 13A-4213 on Katkamsandi Pitz Road some miscreants stopped the vehicle with intention to commit robbery and opened fire of bullet which fatally hit Tulsi Sao and he died on 23.12.2009 due to that gun-shot/occurrence.

(iv) Whether the Savari Jeep No. JH-13A-4213 was validly and effectively insured with Bajaj Allianz General Insurance Co. Ltd. on the date and time of accident?

(v) Whether the claimants are entitled to get compensation amount as claimed by their or any other just and proper amount as compensation?

9. In respect of the claim application of the claimants, two witnesses i.e. C.W.1- Sugandh Devi (wife of the deceased) and C.W-2 is the Khalasi of the vehicle, who happens to be an eye witness of the occurrence were examined. Some documents were marked and exhibited, which are as follows:

Exhibit-1: Certified copy of the FIR.

Exhibit-2: Certified copy of charge-sheet of Katkamsandi P.S. Case No. 321 of 2009.

                    Mark-X:      Copy of Post Mortem Report.
                    Mark-X/1:    Copy of R/C of vehicle JH 13A 4213.
                    Mark-X/2:    Copy of Insurance Policy (Cover Note)
                    Mark-X/3:    Copy of death certificate.
                    Mark-X/4:    Copy of fitness certificate.
                    Mark-X/5:    Copy of Driving Licence.

10. On behalf of Insurance Company, one witness, OPW1-Kaushal Kishore Mishra (Assistant Manager) was examined and three documents were exhibited, which are as follows:-

Exhibit-A: Letter dated 18.12.2013.

Exhibit-B: Postal Receipt.

Exhibit-C: Insurance Policy Certificate [Policy No. OG-10-2446-1812-00000047]

11. The Tribunal after hearing the parties, has held that the deceased although was a driver of the vehicle, did not die by an accident arising out of used of the motor vehicle. It has also been held that the vehicle was duly insured by effective insurance policy, issued by M/s Bajaj Allianz General Insurance Company Limited. Thereafter, the Tribunal went on to decide the issue as to whether the claim application is maintainable or not and the claimants have any cause of action or not.

The tribunal, while deciding the aforesaid issue, arrived at conclusion that since the deceased did not die in an accident arising out of use of motor vehicle, the claim application filed by the claimants for compensation is not maintainable. The tribunal held that in terms of Section 165 of the Motor Vehicle Act, only in respect of accident, resulting the death or bodily injury, arising out of the use of motor vehicle, the claimants are entitled to be compensated. The Tribunal also held that since this incident is of murder, the claimants are not entitled to receive compensation under Section 163-A or also under Section 166 of the Motor Vehicle Act. Thus, the Tribunal has dismissed the claim application, filed by the claimants for grant of compensation vide order dated 28.7.2018.

12. Challenging the aforesaid award dated 28.7.2018 in this appeal, the counsel for the claimants submits that admittedly the deceased was driving the vehicle, at the time of the incident. He submits that though the deceased was killed by gun-shot injury but in the case of road robbery, it can be said that the death has occurred in respect of an accident where the motor vehicle was in use. It is further submitted that since the death occurred during the use of motor vehicle and admittedly the vehicle was insured, the claim application is maintainable and the claimants are entitled to receive compensation. He also submits that the findings of the Tribunal that the incident cannot be said to be an accident arising out of use of motor vehicle as defined under Section 165 of the Motor Vehicle Act, is absolutely erroneous. He further submit that not only the aforesaid finding has to be discarded, but the quantum of compensation has to be assessed on the basis of the pleadings and evidence led by the parties, which is on record and fair compensation should be awarded to the claimants.

13. The counsel for the Insurance Company submits that admittedly the deceased was murdered and in case of murder, the claim application, filed under the Motor Vehicle Act, will not lie. He also submits that the Tribunal has correctly decided the maintainability of the case against the claimants holding that the claim application is not maintainable, where the deceased was murdered by some miscreants in road robbery.

14. Considering the aforesaid submissions of the parties, this Court frames the following issues:-

(i) Whether the claim application of the claimants on the facts of the case, wherein the deceased being the driver of the vehicle was murdered, during road robbery is maintainable or not?

(ii) Whether if it is held that the claim application is maintainable, then what would be just and fair compensation, which the claimants are entitled to receive?

ISSUE NO. (i)

15. To decide Issue No. (i), one must understand the fact as to how the accident had occurred. As narrated earlier, the deceased being the driver of the vehicle bearing registration No. JH-13A-4213 was driving the vehicle when he came across obstacles on road. The obstacle was put up by some miscreants, who by putting stones on the road, blocked the road. The deceased-driver tried to reverse the vehicle and flee from the place of occurrence, but the road robbers surrounded the vehicle being armed with deadly weapons. While the driver tried to flee, reversing the vehicle, one of the miscreants fired bullet from his fire-arm, which hit the head of the deceased, ultimately resulting in his death. This fact is supported by the statement of C.W,-2, an eye witness (Khalasi of the vehicle at the time of occurrence). Statement on the aforesaid fact is consistent and the same could not be controverted by opposite parties. Even witness No. 1 of the opposite party No. 2 in paragraphs 6 and 7 has admitted the aforesaid fact that the deceased died because of gun-shot injury, who was driving the vehicle. The question is whether on the facts, the claim application is maintainable or not. This issue has now been settled by the Hon'ble Supreme Court in the judgment delivered in the case of Rita Devi (Smt.) and Others Vs. New India Assurance Company Limited and Another reported in (2000) 5 SCC 113. The Hon'ble Supreme Court in the aforesaid judgment has held that on the given facts and circumstances of the case, the death of the deceased was caused accidentally in the process of committing the theft of the auto. The Hon'ble Supreme Court also held that the difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. It has further been held that if the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder, but is a murder simpliciter. It has also been held that if the cause of murder or the act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. It is necessary to quote paragraph 10 of the aforesaid judgment:-

"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."

16. Considering the judgment and the ratio laid down when it is applied to the facts of the instant case, I find that the murder was not the sole motive nor there was any enmity between perpetrator of the crime and the deceased, as unknown miscreants wanted to rob the vehicle and when the deceased-driver tried to reverse the vehicle and flee from there, one of the miscreants fired from his fire arm which resulted in injury of the deceased and ultimately in death of the deceased. This clearly suggests that this is not a simpliciter murder, rather this is act of accidental murder. This death is due to accident arising out of use of motor vehicle. Since the death is arising out of use of motor vehicle and the death is accidental in nature, thus in terms of Section 165 of the Motor Vehicle Act, the claim application of the claimants is maintainable and they are entitled to receive compensation. Thus, the finding of the Tribunal that the claim application of the claimants is not maintainable, is not in accordance with law. The finding of the tribunal to that effect is set aside, holding that the application of the claimants, who are legal heirs/dependents of the deceased, is maintainable in the eye of law.

ISSUE NO.(ii)

17. Since Issue No. (i) is answered in favour of the claimants, now it has to be decided as to what would be the amount of compensation, the claimants are entitled to receive. There are sufficient evidence on record to answer the aforesaid issue. P.W. 1, who happens to be the wife of the deceased stated that the deceased was a driver of the aforesaid vehicle, whose income was Rs.3,300/- per month. She stood firm in her cross-examination. In her cross-examination, she stated that she has got no documentary evidence in proof of the aforesaid monthly income of the deceased. Similarly, P.W. 2 who was the Khalasi of the vehicle at the time of occurrence and in fact a colleague of the deceased also stated that the income of the deceased was Rs.3,300/- per month. On the point of income, the respondents have not brought any contrary evidence. The admitted fact is that the deceased was a driver of the vehicle bearing Registration No. JH 13A 4213. There is nothing on record to disbelieve the aforesaid submission of the claimants' witness to the effect that the deceased was earning Rs.3,300/- per month. The aforesaid amount is not also exorbitant. Thus, I hold that the income of the deceased was Rs.3,300/- per month at the time of his death.

18. The computation of compensation under the Motor Vehicle Act is now governed by the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680. As per the said judgment, the enhancement on account of future prospect is also to be considered. As per evidence on record, the deceased was aged about 28 years at the time of accident and he was self-employed, thus 40% enhancement should be granted under the head of future prospect.

Since the deceased died leaving behind five heirs/dependents, who happen to be the wife, children and parents of the deceased, 1/4th should be the deduction on account of personal expenses of the deceased in terms of judgment of Pranay Sethi (Supra).

In view of the aforesaid judgment of Pranay Sethi (Supra), the claimants are also entitled to receive Rs.70,000/- under the conventional head.

Taking into consideration the age of deceased as 28 years at the time of accident, the multiplier would be 17 (seventeen).

19. Considering the aforesaid findings which is arrived at, the just and fair compensation can be calculated as follows:-

Rs.3,300/- (income per month) X 12 X 17= Rs.6,73,200/-

              Rs.6,73,200- Rs.1,68,300 (1/4th less under the
                               head of personal expenses)=         Rs.5,04,900/-
              40% of Rs.5,04,900/-(future prospect)=               Rs.2,01,960/-
              Rs.5,04,900/-+ Rs.2,01,960/- +Rs.70,000/-
                                          (conventional head)=     Rs.7,76,860/-

20. Thus, this Court feels that Rs.7,76,860/- (rupees seven lakh seventy six thousand eight hundred sixty only) is the just and fair compensation, which the claimants are entitled to receive. In this case, no amount has been granted to the claimants as compensation either under Sections 166 and 163A or under Section 140 of the Motor Vehicle Act, as the case was dismissed. Thus, the claimants are entitled to receive the aforesaid amount i.e. Rs.7,76,860/- as compensation.

21. Since it is admitted fact that the vehicle was insured during course of the accident vide Insurance Policy No. OG-10-2446-1812-00000047, the Insurance Company is liable to pay the entire compensation amount to the claimants.

22. Since the claim application was filed in the year 2010, but the witnesses were examined on behalf of the claimants on 4.6.2015 and after cross- examination they were discharged on 29.9.2015, the said amount of compensation i.e. Rs.7,76,860/- will carry simple interest @ 7% per annum from 1 st October, 2015 till the entire amount is paid. The interest on the aforesaid amount will be calculated by the Insurance Company and the total amount should be paid within three months from the date of this order.

23. Accordingly, this appeal stands allowed.

Anu/-CP-2                                                               (ANANDA SEN, J.)